United States v. Crandall

• Decision Date: 10 April 2014
• Docket Number: No. 12–3313–CR.,12–3313–CR.
• Citation: 748 F.3d 476
• Parties: UNITED STATES of America, Appellee, v. George S. CRANDALL, aka George Crandall, Defendant–Appellant.
• Court: U.S. Court of Appeals — Second Circuit

748 F.3d 476

UNITED STATES of America, Appellee,

v.George S. CRANDALL, aka George Crandall, Defendant–Appellant.

No. 12–3313–CR.

United States Court of Appeals,Second Circuit.

Argued: Oct. 29, 2013.

Decided: April 10, 2014.

Paul J. Angioletti, Staten Island, NY, for Appellant George S. Crandall.

Paul D. Silver, Assistant United States Attorney, (Richard S. Hartunian, United States Attorney for the Northern District of New York, Brenda K. Sannes, Assistant United States Attorney, on the brief), Syracuse, NY, for Appellee United States of America.

Before: WALKER, CABRANES, and PARKER, Circuit Judges.

JOSÉ A. CABRANES, Circuit Judge:

Defendant-appellant George Crandall (“Crandall”) was convicted in the United States District Court for the Northern District of New York (Frederick J. Scullin, Jr., Judge ), after trial by jury, of being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).¹ On appeal, Crandall argues that his due process rights were violated because of a hearing impairment that allegedly prevented him from exercising his Sixth Amendment rights to, inter alia, be present, assist in his defense, and confront witnesses against him.²

We hold that the Sixth Amendment requires reasonable accommodations for hearing-impaired criminal defendants during judicial proceedings and that such accommodations must be commensurate with the severity of the hearing impairment. Where a criminal defendant does not notify the district court of the impairment, however, he is only entitled to accommodations commensurate with the degree of difficulty that was, or reasonably should have been, clear or obvious to the district judge.

We hold, based upon a review of the record, that Crandall received accommodations commensurate with the degree of difficulty that was, or reasonably should have been, clear or obvious to the District Judge.

Accordingly, we AFFIRM the judgment of conviction.

BACKGROUND

On January 7, 2010, a federal Grand Jury returned an indictment charging Crandall with one count of felon-in-possession of a firearm and one count of felon-in-possession of ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).³

On March 16, 2011, the District Court held a suppression hearing to determine whether to admit statements made by Crandall during his arrest. During the first witness's testimony, Crandall's counsel stated, “Your Honor, at this time we'd like to interject, Mr. Crandall has a hearing problem, he does have his hearing aids in but he's still having difficulty hearing.” Gov't App. 7. The District Judge asked the clerk to turn up the volume on the microphone, and after the clerk said it was at the highest volume, the Judge instructed the witness “to speak up.” Id. at 8. There was no other indication by Crandall or his counsel that Crandall was thereafter having difficulty hearing during the hour-long proceeding.

Crandall's jury trial took place before Judge Scullin on June 27–28, 2011. At the beginning of jury selection, the District Judge asked Crandall whether his court-provided hearing device was functioning, and Crandall responded that it was “making a fuzzy noise.” Gov't App. 66. The Judge replied, “You might want to try without it because I think the acoustics in here are good enough.” Id. Neither Crandall nor his counsel suggested that the Judge was mistaken. At another point, the Judge admonished Crandall for speaking loudly to his investigator; Crandall stated that he could not hear the Judge's admonishment clearly, and that he “didn't think [he] was speaking out loud.” Id. at 133–34.

Crandall testified at trial, adequately responding to questions on both direct and cross examination. At one point during his testimony, Crandall asked his lawyer to push the microphone closer, and on several occasions asked that a question be repeated.

During a cross-examination of one witness, Crandall's counsel asked if the witness knew that Crandall “has very poor hearing?” Gov't App. 92. The witness responded, “I know he has told me in the past he has poor hearing. I also know he has heard me when I talk to him.” Id. Crandall's counsel then stated, “[H]e has an aid here today. Are you aware [ ] that he is using an aid?,” at which point counsel moved on to another question. Id.

On June 28, 2011, the jury convicted Crandall on both counts of the indictment, and he was released on bail pending sentencing.

After Crandall allegedly violated the conditions of his presentence release, Judge Scullin held a bail revocation hearing on March 8, 2012. At the outset of the proceeding, defense counsel informed the Judge that he “want[s] to make certain that [his] client hears what's going on in this proceeding.” Gov't App. 176. In response, the Judge instructed defense counsel to “[a]dvise your client if he has difficulty hearing, to advise you and you can advise me.” Gov't App. 176–77. Counsel so notified Crandall, who then responded that he was not wearing his hearing aid. The Judge instructed the testifying witness to speak into the microphone as loudly as he could, and neither Crandall nor his counsel thereafter notified the Judge of hearing-related difficulties. Crandall testified during this proceeding as well, and after his testimony, the Judge noted that “[h]e hears quite well.” Id. at 179.

Crandall was sentenced on August 9, 2012. At his sentencing hearing, Crandall submitted a handwritten “Sentencing Statement Affidavit” to the District Court asserting numerous claims including, for the first time, that “I could not hear my trial, witnesses [ sic ] testimony, or the Judge [ sic ] ruling. I could not even communicate with my Attorney because he tried wispering [ sic ] and it was on deaf ears.” Appellant's App. 128. He claimed, also for the first time, that this was due in part to the fact that the hearing device—the buzzing of which he had complained about before jury selection—had subsequently gone dead. Crandall wrote that this “impaired my reason and comprehension and hampered my ability to effectively consult and communicate with my Court appointed counsels [ sic ] which was physical as well as mental.” Id. at 129.

The District Court sentenced Crandall principally to two concurrent terms of thirty-three months' imprisonment, the top of the applicable guidelines range identified by the United States Probation Office in its Pre–Sentence Investigation Report. After the Court imposed the sentence, Crandall stated, “Your Honor, I couldn't make out half what you were sayin', but is there any way I can get a copy of [the sentencing minutes] to know what you're sayin'....” Id. at 118.

This timely appeal followed.

DISCUSSION

On appeal, Crandall contends that his hearing impairment rendered his trial constitutionally defective in violation of his Sixth Amendment rights to, inter alia, be present, assist in his defense, and confront witnesses against him. He claims further that the District Court should have known about his hearing disability, which the District Court “either dealt with half-heartedly or ignored” altogether. Appellant's Br. 25.

As a preliminary matter, whether Crandall adequately raised this issue during the proceedings below affects our standard of review. We review a claim raised in the District Court for “harmless error,” seeFed.R.Crim.P. 52(a), whereas a claim not raised in the District Court is reviewed under the more deferential “plain error” standard, seeFed.R.Crim.P. 52(b).⁴ We conclude that the claim of a continuous hearing impairment was not adequately raised below.⁵

Nevertheless, out of an abundance of caution, we note that because we find no error in the District Court's actions, the outcome would be the same regardless of the standard of review.

A. Sixth Amendment Right to Accommodations

Four decades ago, the Supreme Court held that “[t]he right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State's accusations.” Chambers v. Mississippi, 410 U.S. 284, 294, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). This right stems from the Sixth Amendment's Compulsory Process and Confrontation Clauses, and guarantees a criminal defendant is provided with “a meaningful opportunity to present a complete defense.” Hawkins v. Costello, 460 F.3d 238, 243 (2d Cir.2006) (quoting Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986)). In practical terms, this means that a criminal defendant must “possess sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding”; otherwise, the proceeding would be merely “an invective against an insensible object.” United States ex rel. Negron v. New York, 434 F.2d 386, 389 (2d Cir.1970) (internal quotation marks omitted).

Relying on these concepts, Crandall now argues that the District Court failed to take adequate steps to accommodate his hearing impairment to ensure that he was able to understand and participate in the proceedings, and that this failure rendered his trial constitutionally defective. What the Sixth Amendment requires for those with hearing impairments is a matter of first impression for our Court, although our jurisprudence regarding non-English speaking defendants provides considerable guidance.

We now hold, as an initial matter, that the Sixth Amendment right to participate in one's own trial encompasses the right to reasonable accommodations for impairments to that participation, including hearing impairments. Cf. Negron, 434 F.2d at 390 (holding that a defendant who spoke no English, and “s[a]t in total incomprehension as the trial proceeded,” was not sufficiently “present” to satisfy the dictates of the Sixth Amendment).

Yet the Sixth Amendment does not create an absolute right to the elimination of all difficulties or impairments that may hinder a criminal defendant's capacity to perfectly comprehend, and participate in, court proceedings. Perfect...